A Thorough Debunking of the "Statutory" Argument for the NSA Surveillance Program -- But Alas, Congress Doesn't Care

Marty Lederman

Today's Washington Post reports that David Kris, DOJ's Associate Deputy Attorney General in charge of national security issues from 2000 to 2003 -- now a counsel at Time-Warner -- is "highly critical" of the legal arguments that DOJ has offered in support of the legality of the NSA domestic spying program. That's putting it mildly.

I worked with David at the Department of Justice. It's very safe to say he was one of the very best appellate lawyers in the Department -- and became one of the most trusted, most well-respected authorities in the Department on criminal law and electronic surveillance issues once he moved on to the DAG's Office. He's extremely thorough, careful, and impartial. And those qualities are on display in his recent analysis of the NSA program, contained in this series of e-mails to the Attorney General's Office in December and January, and, much more importantly, in this remarkable 23-page memo dated January 25, 2006. (All were written in his personal capacity, and do not reflect the views of DOJ or Time-Warner.)

David's memo is by a large measure the most thorough and careful -- and, for those reasons, the most effective -- critique anyone has yet offered of the DOJ argument that Congress statutorily authorized the NSA program. It largely confirms the statutory argument contained in two letters that I and 13 other academics and former government officials recently sent to Congress (here and here), but David's analysis is much more comprehensive than anything we could have done in that format -- it delves deep into the interstices and legislative history of FISA (a subject that David knows inside and out), and takes apart with precision all of the technical statutory arguments offered in the DOJ "White Paper" defense of the program.

Two things in particular stand out:

(i) David provides a comprehensive analysis of FISA's "exclusive means" provision (18 U.S.C. 2511(2)(f)), and shows both why that provision precludes the NSA program unless it was impliedly repealed, and why it was not repealed.

(ii) David pinpoints (pp. 6-7 & nns. 59-62) why the DOJ notion that Congress approved the NSA rogram in the 9/18/01 Authorization for Use of Military Force is undermined by the drafting, negotiation and enactment of the PATRIOT Act that was happening at approximately the same time. We've heard a lot in recent days about how critical it is that the PATRIOT Act be renewed to permit the President to fight the War on Terrorism. Just check out the President's remarks today on signing the renewal -- it's all about how the PATRIOT Act is so critical to the fight against the terrorists responsible for 9/11. (Hasn't the President heard the news that those authorities were already enacted in the AUMF?) We heard the same thing back in 2001, when the Act was first introduced. But the logic of the DOJ defense of the NSA program, if it were correct, would mean that many key provisions of the PATRIOT are largely superfluous. (Few observers have noted one of the most extraordinary aspects of the DOJ White Paper: In footnote 13 of that White Paper, DOJ responds to this PATRIOT-Act-is-superfluous argument by explaining that, in fact, the PATRIOT Act was not necessary for the "current armed conflict against Al Qaeda and its allies," and that it was instead merely a vehicle for removing "long-standing impediments to the effectiveness of FISA." In other words, the "necessary to defeat Al Qaeda" argument was merely a stalking horse, and the PATRIOT truly was, and remains, a DOJ wish-list to address issues that had long preceded September 11th. This doesn't mean that the PATRIOT Act should, or should not, have been renewed; it's merely to point out that, on DOJ's own reading of the AUMF, the PATRIOT Act is hardly necessary to address the current conflict with Al Qaeda.)

Another remarkable thing -- perhaps the most important thing -- about the Kris memo is that it is dated January 2006, rather than January 2003: David did not produce anything of the sort when he was actually at DOJ, when the legality of the program was being considered. That's not David's fault. Although he was the person in the DAG's office whose portfolio included FISA and electronic surveillance, and although DOJ often trotted David out to testify and speak on such matters well after September 11th, David was never so much as briefed on the NSA program. Now we have reason to understand why: Perhaps DOJ knew that if it ran its legal arguments by serious, trusted and objective lawyers in the Department -- those who knew FISA inside and out -- they would not have passed muster. It's hard to imagine any other reason why someone of David's skills, and in his position on these precise issues, would have been kept out of the loop. Once again, it's evidence of an Administration that is indifferent as to what the correct legal answers might be, but is instead looking only for some legal hook, no matter how tenuous, on which to hang its desired operational programs. See also, e.g., the legal justifications for torture and other unlawful means of interrogation that were reached without the input of those lawyers in the Administration with the most knowledge on the questions; and the finalization and use of the DoD Working Group Report without even informing the Working Group itself (which included several skeptics). This is a much more systemic problem than the particular NSA dispute at issue here.

David's memo also includes shorter discussions of the Fourth Amendment and Commander-in-Chief questions. I don't agree with quite all of what David writes in these respects -- in particular, I don't think the bona fides of the Article II argument are as fact-dependent as he suggests -- but his analysis is, again, serious, balanced, and well worth reading.

I would go into more detail on the Kris memo, but I'm afraid this is where the story turns sour. (More on the Kris e-mails from "georgia10" here.) You see, David's analysis is really beside the point now, for two reasons: the first comforting, the other disheartening.

First, as far as I'm aware no one in Congress has been persuaded by the Administration's statutory argument: It was dead on arrival. As Senators Graham and Specter, among others, have explained, they were present at the negotiation and enactment of the AUMF, and they guarantee that neither they nor their colleagues intended to authorize the sort of circumvention of FISA that the Administration has been engaged in for the past five years. (Attorney General Gonzales's testimony, in response to Graham's explanation to this effect, was basically that Congress unknowingly authorized a major restructuring of a central framework statute, and that actual legislative intent is irrelevant. You can imagine how well that notion went over in Congress.)

Second, it now appears that Congress simply (and unfortunately) doesn't care that the Administration's (secret) legal justification was implausible, nor does it care that the Executive branch treated the legislature (and its statutory enactments) with contempt. Republican Senators, including Roberts and Hagel, yesterday negotiated a "deal" with the White House for legislation that would actually authorize warrantless, virtually unlimited surveillance of Americans. According to a report in today's New York Times, the bill "would give Congressional approval to the eavesdropping program much as it was secretly authorized by Mr. Bush after the 2001 terrorist attacks, with limited notification to a handful of Congressional leaders. The N.S.A. would be permitted to intercept the international phone calls and e-mail messages of people in the United States if there was 'probable cause to believe that one party to the communication is a member, affiliate, or working in support of a terrorist group or organization,' according to a written summary of the proposal issued by its Republican sponsors. The finding of probable cause would not be reviewed by any court. [A]fter 45 days, the attorney general would be required to drop the eavesdropping on that target, seek a warrant from the Foreign Intelligence Surveillance Court or explain under oath to two new Congressional oversight subcommittees why he could not seek a warrant." Details on Senator Snowe's webiste.

Oh, and in "exchange" for affording the Administration this huge loophole in FISA, the Senate agrees not to investigate the NSA program, and not to look further into the Administration's past lawbreaking. Quite a deal, right? Here's the best part: On Tuesday, Senator Rockefeller remarked that the Senate Intel Committee Republicans were "under the control" of the White House. Senator Roberts responded on Wednesday that he resented being portrayed as what he called a "lap dog of the administration," explaining that Rockefeller "doesn't know how hard we worked."

I don't doubt that Roberts and Hagel did "work hard" to reach their "compromise." After all, look where they started the "negotiations": The Vice President's opening gambit was to scoff at Congress altogether, and to insist that the program would go forward come hell or high water, no matter how many legislators thought it was illegal. So Roberts, et al., actually secured a great victory: They've put an end to the Administration's lawbreaking . . . by amending the law to make the conduct legal. (That'll show 'em.) Checks and balances in living color. (Much, much more on this development over at Glenn Greenwald's site, which is fast becoming the locale for one-stop web shopping on the NSA issue.)

P.S. In signing the PATRIOT Act extension today, the President included this typical qualification:

"The executive branch shall construe the provisions of H.R. 3199 that call for furnishing information to entities outside the executive branch, such as sections 106A and 119, in a manner consistent with the President's constitutional authority to supervise the unitary executive branch and to withhold information the disclosure of which could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties."

Translation: There are numerous provisions of the Act that require the Department of Justice to provide information and documents to congressional committees for purposes of oversight. We will ignore those requirements when we conclude that it will "impair" what occurs in the Executive branch. Thanks for asking, though.

Don't be surprised when the President included similar language if and when he signs the touted NSA-surveillance "oversight" bill that Senators Roberts, Hagel and Snowe just worked so hard to negotiate.

P.P.S. I've been meaning also to link to this brief filed a couple of weeks ago with the Foreign Intelligence Surveillance Court by Hogan & Hartson on behalf of the Constitution Project and the Center for National Security Studies. The brief argues at length that the NSA program is unlawful, and urges the FISA court to hold NSA's electronic surveillance under the program to be unlawful "in any proceeding where the lawfulness of any such surveillance is at issue." More on this development from Lyle Denniston on SCOTUSblog.
Posted 5:54 PM by Marty Lederman [link] (45) comments

A FAIR Thought

Mark Graber

My favorite new book, Jon Gould's SPEAK NO EVIL: THE TRIUMPH OF HATE SPEECH REGULATION, documents how, on most campuses, speech codes restricting racist (etc.) expression were more vigorously championed by administrators seeking to pacify various constituencies and keep up with the Jones, than critical race theorists and minority activists who had more important fish to fry. Reading that book in light of the recent FAIR litigation, I wonder whether something similar may have taken place with respect to military recruitment on campus. My sense of the universe is that while most liberal law professors, like myself, believed that campuses could deny military recruitment consistent with the statute (the military had to obey the same rules as other employers, which meant no discrimination against gays and lesbians) that we were very queasy, to say the least about the spending clause argument (since the government's pocketbook has been used for more liberal good than bad, at least in my judgment). So a question to which I do not know the answer, but would welcome reader input. Was the constitutional attack (as opposed to the statutory attack) on the right of the military to recruit on campus largely driven by professors who believed the spending clause argument or by academic administrators looking to make a largely symbolic protest?
Posted 12:10 PM by Mark Graber [link] (32) comments

The unraveling begins

JB

Many are now wringing their hands over South Dakota's new abortion law, fearing that it means the end for abortion rights in this country. But the people who should really be cowering in fear are Republican political candidates. For South Dakota has begun the process of undermining the Republican Party nationally.

In response to the controversy over South Dakota's new law, three potential GOP candidates for President in 2008 have recently suggested they would sign a bill that banned almost all abortions:

Virginia Sen. George Allen's (R) chief of staff, Dick Wadhams, a national GOP strategist, said Allen "has consistently supported the rights of the people in their states to pass laws which reflect their views and values." A spokeswoman for Massachusetts Gov. Mitt Romney (R) said that if Romney were the governor of South Dakota, "he would sign it. [Romney] believes that states should have the right to be pro-life if that is the will of the people."

A spokesperson said Sen. John McCain, R-Ariz., would have signed the South Dakota legislation, "but [he] would also take the appropriate steps under state law -- in whatever state -- to ensure that the exceptions of rape, incest or life of the mother were included." (Exactly how such "steps" would be received by this bill's sponsors remains unclear).

Not far from their minds is the early-primary state of South Carolina, one of the most anti-abortion states in the country, where voters in 1994 elected a governor (Republican David Beasley) who wanted to outlaw all abortions -- even those endangering a woman's life.

"And there are lots of people here who agree with [Beasley]," said Henry McMaster, the state's attorney general and former GOP chairman. "This is a heavily pro-life state. Any presidential candidate who isn't, who doesn't prove himself on this issue, will suffer."

They might indeed suffer in the primaries. But what about the general election? Most Americans may want abortions more difficult to obtain (as they imagine current circumstances) but they don't want almost all abortions criminalized. If Republican presidential candidates announce their support for criminalizing abortions in the primaries in order to win the votes of the pro-life faithful, their Democratic opponents will be more than happy to remind the public of that position when the general election comes round. That, I predict, will help split the Republican coalition that has governed the country for years.

For this we can thank the wonderful folks in the South Dakota legislature, who have put the criminalization of abortion squarely on the table for public discussion. By making it important for Republican politicians to take a stand-- not on the relatively popular issues of partial birth abortion bans and parental notification requirements, but on the far less popular question of criminalizing abortion-- South Dakota has managed to do what years of Democratic politics could not-- create a wedge issue that will destroy the Republican party's winning coalition nationally.

Posted 6:22 PM by JB [link] (59) comments

Parental Notice and Consent Requirements: Neither Pro-choice nor Pro-life

JB

This New York Times article argues that passage of parental notification and parental consent laws following Casey has not had a significant effect in reducing abortions among teenagers, at least when judged in comparison to similar rates of abortion among 18 and 19 year olds who are not subject to the laws.

Parental notice and consent laws, which are quite popular, are premised on an idea of choice, but the relevant actor is the family instead of the individual woman. The family decides whether the woman will get an abortion. That sort of paternalism is unacceptable for adults, but many Americans embrace it for minor children, on the grounds that parents are asked to consent for other significant surgeries their children undergo.

Abortion rights groups are worried that parents will prevent children from having abortions they would otherwise choose (just as pro-life groups are hoping this will be the case) but the statistics from the Times suggest that the cumulative effect of the laws is not very great; indeed, the story reports, some parents urge their children to have abortions.

Thus even if parental notification and consent laws cause some minors not to have abortions, they may also cause some minors to have abortions when their parents would prefer it. In one sense, that's not what either pro-choice or pro-life people wanted. Pro-life people wanted to reduce the total number of abortions, while pro-choice people want the decision to be made by the individual woman and not forced on her by her family.

Parental notification and consent laws, however, are only one arrow in the quiver of pro-life groups. Bans on partial birth abortion, which the Supreme Court will revisit later this year, are another. However, these laws affect only a very small number of women each year, and the lack of a health exception in the Federal law may actually prevent almost no abortions; if the partial birth abortion procedure is safer in some small number of cases, banning it would simply make a small number of late term abortions that would happen anyway less safe. Thus, like parental notification and consent laws, these laws may have largely symbolic effects.

It would be well worth doing surveys that compare the effect of parental notification and consent laws with TRAP (Targeted Regulation of Abortion Providers) laws that impose fairly burdensome licensing and inspection obligations on abortion clinics, and with waiting periods laws that require women to make multiple trips to obtain abortions (which can be especially burdensome for women in rural areas). It is possible that these laws have the greatest impact on reducing the number of abortions by constricting opportunities for poor women and women in rural areas. If so, they may do comparatively little to hinder women in large urban areas or women who are comparatively affluent however. Once again, the effect on the overall number of abortions may not be as great as pro-life advocates have hoped; the effect of TRAP laws and waiting period laws may be mostly to make access to abortions difficult for the poorest women and for those with the fewest resources to raise children on their own.

Finally, it is worth considering that the reform that has done more to reduce the total number of abortions in the years since abortion was legalized in the United States is better access to and education about contraception. If pro-life forces are particularly interested in reducing the total number of abortions, they might join with pro-choice groups to promote the use of contraception and prevent unwanted pregnancies from happening in the first place. Abstinence programs aimed at teenagers can be a part of a larger effort at reducing total unwanted pregnancies, but by themselves they are unlikely to do the job.

Increased focus on making contraception widely available, especially to young people, educating them in how to use contraception, and emphasizing the importance of using it is probably the single most effective reform that the pro-life movement might make to reduce the total number of abortions in the United States.

Such a program might be acceptable to significant parts of the pro-life movement, but it may be unpalatable to others, either because they have moral and religious qualms about contraception, or because promoting contraceptive use does nothing to stem sexual activity by unmarried people or encourage greater chastity among women. That is to say, for important segments of the pro-life movement, the fight over abortion is not just a fight about reducing abortions, but is connected to a larger struggle about proper behavior, particularly the sexual behavior of women. For these parts of the pro-life movement, the discovery that parental notification and consent laws are not significantly reducing the number of teenage abortions may be doubly upsetting, for it also suggests that these laws are not significantly affecting the sexual behavior of teenagers.

Posted 7:32 AM by JB [link] (39) comments

An Embarrassment of Riches

David Luban

A great deal is disturbing about Judge David Trager’s decision in the Arar case two weeks ago. (Arar is the Canadian of Syrian birth who was snatched by U.S. officials while he was changing planes in New York on his way from Tunisia to Canada, and then shipped off to Syria for ten months of torture and imprisonment in a grave-size cell.) Dismissing Arar’s tort claims against U.S. officials, Judge Trager argued that permitting the law suit to proceed runs the risk that embarrassing information might emerge during the discovery process – for example, information that Canadian officials may have secretly cooperated with the United States in the Arar snatch, despite their denials. In a blistering op-ed, New York Times columnist Bob Herbert accurately paraphrased the argument as an attempt to preserve Canadian officials’ sacred right to lie to their constituents. Judge Trager argues that embarrassing officials in a U.S. courtroom might adversely affect foreign affairs and harm national security.

The Bush Administration’s initial response to the Arar lawsuit, over a year ago, was to invoke the rarely used "state secrets" doctrine, which allows the government an unreviewable privilege to shield state secrets from courtroom revelation. (The doctrine’s most common use has been in cases where Defense Department whistleblowers file actions permitting them a financial award for revealing fraud and corruption. Sometimes, these actions risk revealing secret details of weapons systems.) In the Arar case, the government argued that because every single fact is a U.S. state secret, Arar could not possibly prove his case, and his suit should be dismissed. Veteran litigators referred to the state secret doctrine as "the nuclear option", because of course it automatically obliterates an adversary's case. In theory, the government can, if it wishes, invoke it every time it is sued.

Judge Trager never ruled on the state-secret motion, because he goes one step further. He argues, amazingly, that even invoking the state secret doctrine might prove embarrassing to the government, because "it could be construed as the equivalent of a public admission that the alleged conduct had occurred in the manner claimed." Therefore, the lawsuit must be tossed out without forcing the government to use the nuclear option. It's just too embarrassing to have to go nuclear in order to shield your officials (and those nice Canadians) from having it revealed that they colluded in the torture of their kidnap victim.

The problem is that there is no limit to the anti-embarrassment principle. To take an obvious example, the revelation of the Abu Ghraib photographs undoubtedly embarrassed the United States government and made it more difficult to orchestrate anti-terrorism action with other governments. Therefore, no law suit by Abu Ghraib victims can be permitted. On this logic, no law suit that ever reveals misconduct or criminality by U.S. personnel, no matter how atrocious it is, can ever go forward. After all, anything that might make us look bad could have adverse effects on the prosecution of the War on Terror. In fact, the more atrocious the conduct, the more embarrassing its revelation would likely be - so, under the anti-embarrassment principle, the worse the conduct the more protection it deserves.

So there we have it. Along with the famous "commander in chief override," which supposedly allows the President (in his role as Greatest Field Marshall of All Time) to override any law in the name of national security, we now have the anti-embarrassment principle, which allows courts to dismiss any law suit that might embarrass U.S. officials in the eyes of our allies.

Even this doesn’t get at one of the most breathtaking portions of Judge Trager’s Arar opinion, where he delivers the following obiter dictum on whether the snatch and torture of Arar "shocks the conscience":

While one cannot ignore the "shocks the conscience" test established in Rochin v. California, 342 U.S. 165, 172-73 (1952), that case involved the question whether torture could be used to extract evidence for the purpose of prosecuting criminal conduct, a very different question from the one ultimately presented here, to wit, whether substantive due process would erect a per se bar to coercive investigations, including torture, for the purpose of preventing a terrorist attack. Whether the circumstances here ultimately cry out for immediate application of the Due Process clause, or, put differently, whether torture always violates the Fifth Amendment under established Supreme Court case law prohibiting government action that "shocks the conscience" - a question analytically prior to those taken up in the parties' briefing - remains unresolved from a doctrinal standpoint. Nevertheless, because both parties seem (at least implicitly) to have answered this question in the affirmative, it will be presumed for present purposes that the Due Process clause would apply to the facts alleged.

Until now, no one thought this question "remains unresolved from a doctrinal standpoint." In 1980, the Second Circuit denounced torture in ringing language, in its Filartiga opinion, which established the right of foreign torture victims to sue their torturers in U.S. courts under the Alien Tort Statute. In a footnote, Judge Trager, for whom this decision is controlling precedent, acknowledges the strong anti-torture language in Filartiga, but reads it narrowly to conclude "this dictum does not address the constitutionality of torture to prevent a terrorist attack." He also acknowledges our treaty commitments not to torture, replying "the obligations...can be repudiated," and virtually invites Congress to do so by suggesting that customary international law against torture would not prevail over "congressional legislation to the contrary."

The last sentence of the quote is remarkable – it admits that even the Bush Administration doesn’t deny or contest that torture shocks the conscience and violates the constitution. So Judge Trager's musings on the subject are entirely gratuitous. He is just sounding off. The whole point of the paragraph seems to be a judicial protest that, for heaven’s sake, somebody ought to be arguing that interrogational torture does not shock the conscience. It looks as if Judge Trager was eager to lay down the first precedent toward that conclusion in a published judicial opinion.

At least for Judge Trager, the sands have shifted from the world of 1980, when the Filartiga court labeled torture a "dastardly and totally inhuman act," to a world where torture is not only thinkable, but not even shocking – at least when it’s done by us to stop terrorists. His opinion contemplates a world where U.S. officials torture away with an entirely clear conscience, while resting secure in the knowledge that no court will embarrass them by allowing their victims a forum to prove that it ever happened.
Posted 2:32 PM by David Luban [link] (37) comments

Gall (and Desperation): How Low Can Frist Stoop?

Marty Lederman

The White House must be really desperate to avoid any congressional investigation into whether the NSA's domestic spying program violates the law. How else to explain this remarkable letter? (Senator Frist demonstrates here that he is entirely a puppet of the Republican Party has absolutely no interest in preserving the Senate's institutional interests -- not that there's anything wrong with that, right?)

You see, rather than performing the critically important role of (in Frist's words) "conducting oversight of the intelligence community and its activities," the Senate Intelligence Committee Democrats -- and some Republicans (Snowe, Hagel) who actually care about the laws they are charged with overseeing -- are outrageously attempting to . . . conduct oversight of the intelligence community and its activities! For shame! You see, investigating whether the President is abiding by the laws enacted by Congress -- those carefully designed to strike a balance between the national security needs of the Nation and the privacy of Americans -- or whether he is instead trying to arrogate all power to the Executive, to the point where Congress, and statutes, are mere trifles -- is a project that "offers little (or no) value to the challenges our Nation now faces."

As a remedy, Frist threatens to alter the 30-year-old bipartisan nature of the Intelligence Committee -- which permits investigations to go forward on a motion of the minority party (the Vice-Chairman), if there is a majority of members in favor. Much more on this development from Glenn Greenwald.

It's a fairly notable day, isn't it, when the Senate Majority Leader is willing to take all necessary steps to emasculate the Senate's ability to check the Executive branch?

The next move, it seems to me, belongs to Senators Hagel and Snowe.
Posted 11:26 AM by Marty Lederman [link] (62) comments

What did the President know and when did he know it?

JB

The National Journal reports that President Bush was repeatedly given intelligence which contradicted the case for war he made to the American public.

The first report, delivered to Bush in early October 2002, was a one-page summary of a National Intelligence Estimate that discussed whether Saddam's procurement of high-strength aluminum tubes was for the purpose of developing a nuclear weapon.

Among other things, the report stated that the Energy Department and the State Department's Bureau of Intelligence and Research believed that the tubes were "intended for conventional weapons," a view disagreeing with that of other intelligence agencies, including the CIA, which believed that the tubes were intended for a nuclear bomb.

The disclosure that Bush was informed of the DOE and State dissents is the first evidence that the president himself knew of the sharp debate within the government over the aluminum tubes during the time that he, Cheney, and other members of the Cabinet were citing the tubes as clear evidence of an Iraqi nuclear program. Neither the president nor the vice president told the public about the disagreement among the agencies.

When U.S. inspectors entered Iraq after the fall of Saddam's regime, they determined that Iraq's nuclear program had been dormant for more than a decade and that the aluminum tubes had been used only for artillery shells.

The second classified report, delivered to Bush in early January 2003, was also a summary of a National Intelligence Estimate, this one focusing on whether Saddam would launch an unprovoked attack on the United States, either directly, or indirectly by working with terrorists.

The report stated that U.S. intelligence agencies unanimously agreed that it was unlikely that Saddam would try to attack the United States -- except if "ongoing military operations risked the imminent demise of his regime" or if he intended to "extract revenge" for such an assault, according to records and sources.

The single dissent in the report again came from State's Bureau of Intelligence and Research, known as INR, which believed that the Iraqi leader was "unlikely to conduct clandestine attacks against the U.S. homeland even if [his] regime's demise is imminent" as the result of a U.S. invasion.

On at least four earlier occasions, beginning in the spring of 2002, according to the same records and sources, the president was informed during his morning intelligence briefing that U.S. intelligence agencies believed it was unlikely that Saddam was an imminent threat to the United States.

However, in the months leading up to the war, Bush, Cheney, and Cabinet members repeatedly asserted that Saddam was likely to use chemical or biological weapons against the United States or to provide such weapons to Al Qaeda or another terrorist group.

The Bush administration used the potential threat from Saddam as a major rationale in making the case to go to war. The president cited the threat in an address to the United Nations on September 12, 2002, in an October 7, 2002, speech to the American people, and in his State of the Union address on January 28, 2003.

Although the Administration had multiple justifications for invading Iraq, the most important in garnering public and Congressional support was the imminent danger that Saddam posed to the United States. If Congress had known that intelligence services did not believe that Saddam posed such a threat, support for an authorization to go to war to overthrow Saddam would have been far smaller, and indeed, the President might not have been able to get a majority of Congress behind him. And if, in addition, he had been honest about how much the war would cost and how many troops would be needed it is very likely that Congress would not have gone along.

The President sold this war to the American public based on half truths. He then refused to acknowledge the cost of the war and the number of troops it would require. When his Administration botched the occupation, he repeatedly refused to admit how serious the situation was or how badly he had handled things. The Iraq war is a policy sold on misrepresentation, premised on wishful thinking, and carried out in denial. That's not a policy for success.

Posted 8:41 PM by JB [link] (37) comments

Mother of Mercy, Is This the End of FISA?!*

Marty Lederman

*Hat tip: Edward G. Robinson.

The Washington Post reports today about legislation drafted by Senator Specter to respond to the NSA/FISA imbroglio. The Post makes it sound as if Senator Specter would be clamping down on the Administration:

The federal government would have to obtain permission from a secret court to continue a controversial form of surveillance, which the National Security Agency now conducts without warrants, under a bill being proposed by Senate Judiciary Committee Chairman Arlen Specter (R-Pa.). Specter's proposal would bring the four-year-old NSA program under the authority of the court created by the 1978 Foreign Intelligence Surveillance Act. The federal government would have to obtain permission from a secret court to continue a controversial form of surveillance, which the National Security Agency now conducts without warrants.

Although that might be technically true, the notion that the Specter bill would "bring the four-year-old NSA program under the authority of the [FISA] court" obscures what's so significant about the Specter bill -- namely, that it would bring the program "under the authority of the court" by providing statutory authorization for a program that is currently illegal.

The draft legislation isn't at all what Senator Specter has been talking about in recent weeks -- namely, a bill to facilitate judicial review of the legality of the current NSA docmestic surveillance program. This bill would appear to do absolutely nothing to address whether the current and ongoing program(s) is (are) permisisble under current law -- that is to say, it would not seek to facilitate judicial review of the AUMF and Article II arguments on which the Administration is relying.

As Glenn Greenwald notes, it is "disorientingly bizarre to hear about a proposed law requiring FISA warrants for eavesdropping because we already have a law in place which does exactly that. It's called FISA. That's the law the Administration has been deliberately breaking because they think they don't have to comply with it and that Congress has no power to make them."

But the Specter draft is even more alarming than Glenn suggests. According to Glenn, the Specter draft would "require[] (again) that the NSA program be conducted only within the FISA framework."

As I read the draft bill, however, this is wrong. It's not simply a a reenactment of the "FISA framework" -- instead, it's a wholesale dismantling of that framework, a substantive amendment to FISA that would vastly increase the surveillance authority of the President. It would give the Executive branch everything it has always wanted, and much more: The punishment for having broken the law with impunity would be a wholesale repeal of the law that has governed electronic surveillance for almost 30 years (and not only with respect to Al Qaeda or terrorism). In one fell swoop, the Specter legislation would undo the detailed regulatory scheme that both political branches have so carefully calibrated over more than a quarter-century.

A word of caution: I've barely had time to review the draft closely, and so perhaps I'm missing something significant. These comments are necessarily tentative and preliminary. But on first glance, this seems to be the major impact of the Specter bill:

Under FISA, in order for the federal government to engage in electronic surveillance targeted at someone here in the U.S. -- i.e., at phone calls and e-mails going out of the U.S. -- there must be probable cause that the person targeted is a foreign power or an agent of a foreign power. See 50 U.S.C. 1805(a)(3). The Specter bill would go much, much further. Under that bill, it would not be necessary for the NSA to show that either party to an intercepted phone call or e-mail has anything to do with Al Qaeda or any other terrorist organization. It would not even be necessary for the government to show probable cause -- or reason to believe, or any evidence -- that etiher party to the call or e-mail is a foreign power, an agent of a foreign power, or even associated with a foreign power.

Instead, the bill would permit domestic electronic surveillance targeted at U.S. persons merely upon a showing of "probable cause" that the surveillance program as a whole -- not even the particular targeted surveillance -- will intercept communications of anyone who has "had communication" with a foreign power or agent of a foreign power, as long as the government is seeking to monitor or detect that foreign power (or agent)! (See the new section 704: The standard for the FISA Court's review of the application is whether "there is probable cause to believe that the electronic surveillance program will intercept communications of the foreign power or agent of a foreign power specified in the application, or a person who has had communication with the foreign power or agent of a foreign power specified in the application.")

This is breathtakingly broad because the pre-existing definitions of "foreign power" and "agent of foreign power," which would not be changed, include not only terrorist organizations, but all components of a foreign government, all foreign-based political organizations, and all non-U.S. persons acting in the U.S. as agents of such govenrments and organizations.

Therefore, if I'm reading it correctly, if you've ever had any communication with a foreign government or organization, or its U.S. agents or employees -- that is to say, if there's "probable cause" that you live and breathe here in the U.S. -- this bill would permit the President to wiretap you indefinitely, without any showing that any of your phone calls have anything to do with a foreign entity, let alone Al Qaeda. [UPDATE: Not quite indefinitely. "Continuous" surveillance could only last 90 days, after which the NSA would have to obtain a traditional FISA order, or perhaps merely skip a day and start the surveillance anew, so that it's not "continuous" for more than 90 days.]

In other words, there would no longer be any meaningful substantive statutory restriction on the federal government's electronic domestic surveillance of U.S. persons -- the end of FISA as we know it. The only check would be an odd constitutional check: The FISA court would be required to certify that the program as a whole (again, not any particular surveillance) is "consistent with" the Fourth Amendment. This would, if I'm not mistaken, bring us right back to the pre-FISA days, when the Fourth Amendment was the only legal constraint on domestic electronic surveillance by the federal government. To be sure, under the Specter bill the Fourth Amemdent bona fides would have to be approved in advance, by the FISA court. But the proceedings would be secret, and ex parte. Moreover, the FISA Court could not possibly review the surveillance for, e.g., the "particularity" that the Fourth Amendment requires, because the FISA Court would be tasked not with determining whether any particular interception is constutitional, but somehow with making "wholesale" determinations that the program writ large is "consistent with" the Constitution. That seems untenable, at least on first glance.

If I'm reading this draft correctly, it goes far, far beyond what has been proposed by those, such as Richard Posner and Phillip Bobbitt, who think that FISA is outmoded and needs radical updating.

Moreover, the requirements of FISA Court approval in the Specter bill would be limited to the substance of communications -- and would expressly exclude interception of information identifying sender, recipient, date or time of the communication. See section 702(d)(2). Thus, I think it could be read to implicitly authorize all "data mining," without FISA court approval, of the latter category of information, which is currently covered by FISA at least some of the time. And it would appear not to include any of the prophylactic measures that Jack identified as necessary to ensure that such a data-mining program is constitutionally acceptable.

As Glenn describes it, reading of the Specter bill "is somewhat like hearing that a life-long, chronic bank-robber got arrested for robbing a bank over the weekend and, in response, a Senator introduces legislation to make it a crime to rob banks." I don't think that's quite right -- in fact, it's like hearing that a lifelong, chronic bankrobber was arrested for robbing a bank over the weekend and, in response, a Senator introduces legislation to make it lawful to rob banks. (Well, with all respect to Glenn, the bank-robbing analogy isn't the best, because the conduct in question here is not as inherently wrongful as grand theft. But the Specter initiative does respond to wanton illegality with a bill to make the conduct lawful.)

It may be that I'm misreading the bill. I hope so. I'd very much welcome comments showing why I'm wrong. (And I should note that the draft is said to be a work in progress -- it's possible that it does not currently reflect what Senator Specter wishes to accomplish.) [UPDATE: Glenn G. points out that the bill would give the FISA Court the authority not only to evaluate a "program" under the Fourth Amendment, but also to "consider the benefits" of the program "as reflected by the foreign intelligence information obtained." See proposed section 704(b)(3). That is a very odd provision. Insofar as it would give the FISA Court the power to reject surveillance because of the court's simple disagreement with the Administration that the "benefits" were worth the intrusion on privacy -- in Glenn's words, "vest[ing] the FISA court with rather broad discretion to approve or reject the eavesdropping programs submitted by the Administration" -- it would be of dubious constitutionality: It's not the role of an Article III court to be second-guessing the policy choices of the Executive branch. If, on the other hand, the FISA Court is to consider the "benefits" only as a component of its evaluation of the constitutional question -- e.g., considering an NSA "special needs" argument under the Fourth Amendment by looking, in part, at how necessary the surveillance is -- it's probably not unconstitutional; but in that case, the "consider the benefits" provision wouldn't provide the FISA Court with any discretionary authority to nix a surveillance program merely because it doesn't like the smell of it.]

So what's the alternative? How about this: A statute that facilitates prompt judicial review of the legality under current law of the NSA programs. Let's get a prompt Supreme Court evaluation of the current lay of the law and the land -- and only then should we begin the careful evaluation of how FISA might be amended to take account of the needs of the current conflict with Al Qaeda.
Posted 11:06 AM by Marty Lederman [link] (67) comments

The Definitive Fox News Screen Cap

Marty Lederman

(Hat tip: Opinio Juris.)
Posted 6:55 AM by Marty Lederman [link] (35) comments

But Jack, Abuse is Not Mistreatment

Marty Lederman

Jack, Jack -- you still don't get it, do you? Yes, of course this sort of abuse was promoted by Geoffrey Miller, and was sanctioned by high-level officials in the Pentagon (who told Miller, but not their own lawyers, about what was legally permissible under their nouveau theory of the Constitution).

But so what?

Apparently you have not yet reconciled yourself to the plain fact that abusive and degrading treatment, such as that described in these e-mails, is not only "humane," but is actually authorized by the Army Field Manual -- which in turn incorporates the standards prescribed for prisoners of war under the Geneva Conventions. It therefore follows that wrapping Muslim detainees in an Israeli flag and forcing them to watch gay pornography under strobe lights is humane treatment, consistent with the Geneva Conventions. Don't just take my word for it -- that's the conclusion of the Pentagon's own Schmidt Report (at least, the Executive Summary, which is all we've been permitted to see). This explains why the Pentagon spokesperson can shamelessly respond that these recent revelations are "old information" -- been there, done that.

Hey, these detainees were lucky -- at least they were not forced to wear a bra and a thong, stripped naked, and tied to a leash and forced to perform a series of dog tricks (all of which is -- repeat after me -- humane and authorized by longstanding Army rules).

So please, Jack, get with the program -- no more of this talk of "mistreatment."
Posted 5:59 PM by Marty Lederman [link] (39) comments

Don't be distracted by the gay porn

JB

The latest revelations about prisoner mistreatment at Guantanamo Bay are both weird and sad. The weird part is that military interrogators posing as FBI agents wrapped detainees in an Israeli flag and forced them to watch homosexual pornography under strobe lights during interrogation sessions that lasted as long as 18 hours.

But that weirdness shouldn't detract our attention from the more important revelations about the far harsher interrogation methods used at Gitmo. And the sad (and far more important) point that has come to light is that the prisoner mistreatment wasn't due to isolated misbehavior by low ranking officers, as the Administration has repeatedly asserted, but went up much higher:

The documents suggest that harsh interrogation methods were approved of and encouraged by high-ranking Pentagon officials and commanders. In an internal FBI memo dated May 2004, an unidentified bureau official complained that Defense Secretary Donald H. Rumsfeld's public pronouncements about interrogation policies were misleading.

"I know these techniques were approved at high levels within DoD and used" on specific prisoners, said the official, referring to the Department of Defense. The names of the author and recipients of the e-mail were blanked out on the version obtained and released by the ACLU, and no information was provided to indicate how the author knew the techniques were authorized at top levels.

In an e-mail from May 2003, Guantanamo's prison commander, Army Maj. Gen. Geoffrey D. Miller, was described as favoring aggressive methods "despite FBI assertions that such methods could easily result in the elicitation of unreliable and legally inadmissible information."

The real story is not the U.S. military's views about gay porn but the Defense Department's attempt to avoid responsibility for policies of prisoner abuse by trying to blame mistreatment on individual soldiers. The Administration is right about one thing: prisoner abuse at Gitmo and elsewhere was ultimately due to a few bad apples, but those bad apples are in the Pentagon and in the Bush Administration itself.
Posted 3:19 PM by JB [link] (37) comments

South Dakota's New Abortion Ban

JB

South Dakota's new abortion legislation has not yet been signed by the Governor. If it becomes law, it will not lead to a challenge to Roe v. Wade or Casey at the Supreme Court. Because the law bans almost all abortions, it will be immediately challenged in a declaratory judgment action, and a preliminary injunction will issue. That injunction will be upheld by the 8th Circuit, and the Supreme Court will deny certiorari. And that will be the end of the matter.

Why am I so certain that something like this will happen?

First, I am assuming that Justice Stevens will not retire in the next two years. If he does, then there will be only four votes for retaining Roe and Casey, and all bets are off. Indeed, South Dakota legislators may have been banking on precisely this possibility: They may be hoping that the case won't make it from the district court to the Eighth Circuit to the Supreme Court until after Stevens leaves the Court and after his successor is appointed by a Republican President and confirmed by a Republican controlled Congress. But we have no assurances of this happening yet, so we start with the fact that five Justices (including Kennedy) will vote to uphold the basic right to abortion. If that is so, then the most likely result is that the law will be struck down in the lower courts and the Supreme Court will deny cert.

Second, assuming that Stevens remains on the Court, if the goal of anti-abortion advocates is to overturn Roe, the most likely way this will happen is by chipping away at Roe and Casey slowly over time. The 8th Circuit's decision on the Federal Partial Birth Abortion statute, on which the Supreme Court has accepted certiorari, is a far better vehicle for undermining the doctrinal foundations of Roe and Casey through a series of doctrinal distinctions. Only after the Court has heard a number of these challenges, undermining Roe's and Casey's doctrinal basis, will it be likely to accept a case that challenges Roe and Casey head on. So a statute like South Dakota's might be the basis of a full on challenge to Roe in about five years or later, assuming that the Court upholds the Federal Partial Birth Abortion law (which they may do to some extent-- more about that in a later post) and takes a series of abortion cases in the next few Terms that serve to undermine Roe.

Again, if Stevens leaves, the Court may accelerate this process, as happened when Powell retired in 1987. This led, first, to Webster, and ultimately, to Casey, which did not overturn Roe but cut back on it significantly.

Nevertheless, the South Dakota bill, if it passes, is important for its symbolic effect. It signals that (some) pro-life forces are trying, yet again, for another all out assault on Roe. To win, they will have to gain a sustained majority of public support for overturning Roe, something they do not yet have, and they will have to ensure that the Republicans stay in power so that Republican Presidents and Republican-controlled Congresses stock the federal courts with pro-life judges. (The reason why sustained public support is important is that if the public is not behind overruling Roe, the Republicans will be far less likely to appoint people who will vote to overturn Roe and Casey). On the other hand, if the next Supreme Court appointment is made by a Democrat, the pro-life cause will be set back for a time, because the swing Justice will remain Justice Kennedy. Then the most that pro-life forces can hope for is a very slow chipping away at Roe.

Posted 2:14 PM by JB [link] (41) comments

How the Pentagon Came to Adopt Criminal Abuse as Official Policy

Marty Lederman

In this week's New Yorker, Jane Mayer has written a must-read, definitive article laying out in great detail how certain Pentagon lawyers, led by Navy General Counsel Alberto Mora, stood up to Donald Rumsfeld and Jim Haynes in January 2003 and pleaded that the criminal conduct approved by Rumsfeld be ceased. Mora's efforts, recounted in a remarkable memorandum that he wrote to the Church Commission in 2004, brought an end to the unlawful abuse at Guantanamo on January 15, 2003. But then the efforts of Mora and others were swiftly and unceremoniously undermined by the promulgation of the April Working Group Report, which concluded that many unlawful techniques were in fact legal -- that criminal conduct, including violations of the Uniform Code of Military Justice, could be excused by authority of the Commander in Chief and through doctrines of "necessity" and "self-defense."

The most important revelation of Mora's memo, and of Mayer's piece, is this startling fact:

The Working Group itself, including Mora -- in whose name the Report was drafted -- were never informed that it was finalized and issued on April 4, 2003. Indeed, they were deceived by Pentagon General Counsel Haynes into believing that the Report had been scrapped after their persistent objections. But in fact, the final version of the Report -- based principally on the extreme legal conclusions of the Office of Legal Counsel, which had aroused persistent outrage and objection from the career lawyers in the Pentagon -- was "signed out" on April 4th and "briefed" to Geoffrey Miller before he was assigned to Iraq.

Fancy that: For weeks, Pentagon lawyers complained to Rumsfeld and Haynes that the draft Report's conclusions were legally indefensible, and that the Report would sanction conduct that is plainly criminal. Rumsfeld and Haynes simply stopped speaking to those lawyers about the initiative, and conspicuously announced to the public (in a Haynes letter to Senator Leahy) that the Pentagon's policy is to refrain from torture and cruel, inhuman and degrading treatment. This assauged the Pentagon lawyers, who had been seeking just such a policy pronouncement all along. In the meantime, the Working Group Report is finalized and issued -- unbeknownest to the Working Group! -- and Geoffrey Miller is briefed on it. Miller -- having now been informed that the criminal law is a mere trifle that cannot stand in the way of the Commander in Chief's wishes -- is then sent to Iraq to "GTMOize" the interrogation operations there and to obtain more information from Iraqi detainees. (A further note below on how Miller might have used the Working Group Report.) And what do you know?: The vast majority of the criminal abuse in Iraq occurs between Miller's arrival and December 2003. (In December, new OLC head Jack Goldsmith informed the Pentagon that it should no longer rely on John Yoo's legal analysis.)

Coincidence?

Rumsfeld and Haynes chose to brief Miller on the Working Group Report -- but to keep its existence secret from the lawyers who comprised the Working Group itself, after they complained that it was sanctioning criminal conduct. Moreover, Rumsfeld and Haynes had expressly approved criminal coduct at GTMO back in December 2002. And Mayer's piece, together with the JAG memos from early 2003, demonstrates beyond any doubt that the top officials in the Pentagon welcomed OLC's legal advice that it was permisisble to employ interrogation techniques prohibited by criminal law and longstanding DoD policy -- and they were insistent that such legal advice form the basis of the Working Group Report, notwithstanding the serious objections of career DoD lawyers. Finally, recall the Schlesinger Report's finding that somehow, by hook or by crook, the Rumsfeld-approved directives from GTMO, which the Pentagon had ostensibly reneged in January 2003 when Mora threatened to draw attention to the matter, later "circulated" freely to Afghanistan and then to Iraq.

Just as with the 2002 OLC Torture memo, anyone in the Administration who might have had knowledge of the legal difficulties -- and who might have complained that the interrogation policy was on shaky legal ground -- was cut out of the loop. The only ones who were informed of the governing legal conclusions were those assigned to oversee the interrogations. These dots are not too difficult to connect.

Which leads to another part of this scandal that should not be overlooked: The Church Commission chose not to connect them. During his investigation of these events, Admiral Church was given the Mora memo, the JAG memos, the OLC documents, and much more. He also presumably interviewed officers such as Mora and Miller. Therefore he has known for quite a while that Miller was briefed on the Working Group Report -- but that Mora, et al., were not even told that it was finalized. He also likely knows much more than he has let on about who briefed Miller, and how the legal judgments in the Working Group report were transformed into operational policy in Iraq. The fact that Church's Report, and, more importantly, the underlying documents supporting that report, including the various interrogation policies issued in Afghanistan and Iraq in 2003-2004, have not yet been made public -- and that the Congress has not made any effort to disclose those documents -- is, as far as I can tell, indefensible.

What I've written above barely scratches the surface. For anyone interested in the torture and abuse scandal, Mayer's piece and Mora's memo are indispensible reading. So go and read them.

For those interested in further details of the torture scandal as it relates to events in the Department of Defense, GTMO, Iraq and Afghanistan, see Posts Nos. 6, 11, 18-22, 25-28, 34-35, and 38, under my name over at our "Anti-Torture" Page.

NOTE on the "migration" of GTMO techniques to Iraq:

The Executive Summary of the Church Report -- which is all that has been made public -- reports that on September 14, 2003, Lieutenant General Ricardo Sanchez published the first CJTF-7 interrogation policy for Iraq, a policy "heavily influenced by the April 2003 JTF-GTMO interrogation policy, which MG Miller had provided during his visit." We don't know precisely which April 2003 GTMO "policy" influenced Sanchez's Iraq policy. In addition to the April 4th Working Group Report, Secretary Rumsfeld promulgated a more moderate memoradnum on April 16, 2003. Rumsfeld's memo approved only 24 of the 35 Working Group techniques, and reiterated that they must be applied "humanely." As we now know, the promise of "humane" treatment was worthless, since DoD considers virtually any technique, no matter how degrading and grotesque, to be "humane." Still, if Rumsfeld's memo were read narrowly, and if interrogations were limited to only what that memo approves, most of the abuse in Iraq would never have occurred. I suppose it is theoretically possible that Miller was instructed to adhere strictly to Rumsfeld's memo, and that Miller advised Sanchez to abide strictly by the letter of that memo. But I doubt it. Why, in that case, was Miller briefed on the much more aggressive legal conclusions of the Working Group Report? And why, when Sanchez promulgated his Iraq interrogation policy, did CENTCOM's Staff Judge Advocate almost immediately conclude that it was "overly aggressive"?
Posted 6:32 AM by Marty Lederman [link] (36) comments

After Neoconservatism

JB

Francis Fukayama's autopsy of neoconservatism is well worth reading, and makes many sensible points about the direction that American foreign policy should now take. What struck me though, in reading it, was how many of his claims about what was wrong with the Bush Administration's policies were available in 2001, and, indeed, were stated over and over again by critics of the Administration in the run up to the Iraq war. People in power simply didn't want to listen, or if they did listen, they discounted the advice because they were completely convinced of the correctness and righteousness of their own world view. They ridiculed their critics as naive, cowards, sore losers, weak-willed conciliators, unconcerned with America's national security, and sometimes even as traitors. And much of the country, which likes strong leadership, simply went along, trusting that its leaders had the knowledge, the wisdom, and the expertise to back up their bluster.

Fukayama makes the excellent point that neoconservatives were perhaps seduced by the ease with which Communism fell in the late 1980's and early 1990's. The fall of Communism was, after all the great confirmation of neoconservatives' fervent anti-communism and their belief that promoting American ideals of democracy and freedom could make the world better. But that very example also shows why the Bush Doctrine was so deeply unrealistic. The fall of communism began with Truman's policies of containment in the late 1940's, which were continued with various fits and starts along the way by every U.S. President thereafter for 40 more years. Only after a long and sustained strategy of opposition and containment, in which military force played only one role (and often, as in Korea and Vietnam, not an entirely successful one), did Soviet-style Communism finally give up the ghost. Neoconservatives were right to believe that it was worth fighting the Cold War, but they had forgotten why it was called a "cold" war-- that it did not primarily rely on the use of direct military force to topple your enemy.

That does not mean that the best way forward is the model of the Cold War in all of its aspects. The current struggle is different in many respects. What the failure of neoconservatism does teach us is the inevitable limits of an ideological approach to foreign policy, and indeed, to human betterment generally. Neoconservatives first emerged as disillusioned leftists who criticized the naivete of American liberalism, arguing that it was not enough merely to have good intentions to make the world better place; that society was far more complex than human foresight could comprehend, and that direct and massive interventions into social arrangements would inevitably produce unintended consequences. How ironic that this lesson of the first generation of neoconservatives was lost on the next generation, who boldly, blindly, and smugly led the United States into a foreign policy disaster.

Posted 8:57 AM by JB [link] (35) comments

New Media and Old

JB

My interview with National Journal's Blogometer appears here. The last question was an invitation to write an essay on the following: "How do you see the new media and old media affecting and influencing each other in the next five years?" This is what I said:

Although bloggers like to think of themselves as bravely checking and critiquing old media, and parts of old media still regard bloggers as uncouth, unaccountable, and unreliable, in fact new media and old media (viewed both as a set of distinctive technologies and as a set of persons and social practices) have effectively merged much more than either would care to admit.

Reporters now regularly use bloggers, particularly expert bloggers, as sources for their stories. Newspapers, television networks and newsmagazines increasingly incorporate interactive elements in their online versions, sponsor their own blogs, and provide linkbacks to the blogs that discuss their stories. These trends, which have begun in earnest in the past year or so, will only accelerate as time goes on, as traditional media organizations work out the kinks of how to integrate interactivity into their business models. (Eventually, of course, broadcast television and internet video will merge as content delivery methods, and online delivery of text will increasingly dominate paper delivery.)

The most heavily linked to opinion and expert blogs, and aggregator blogs (i.e., blogs which primarily collect links to what other blogs are doing) make it increasingly easy for mainstream media to know what is going on in the blogosphere and to use this as information sources, as ideas or raw materials for new stories, and as a rough estimate of public opinion.

Interactivity will transform old media, which will not give up the ghost, but will instead use its considerable political and financial clout to draw important elements of the blogosphere ever closer to it, coopting and transforming them, even though many parts of the blogosphere will always remain beyond old media's grasp.

What mainstream media has to offer the blogosphere are money, advertising and links (i.e., traffic). Although the structure of the Internet guarantees that bloggers can generate some degree of traffic on their own, mainstream media platforms, because of their prominence, will help secure a disproportionate share of traffic and attention, and therefore will become (even more than today) important nodal points in the blogosphere, much to the chagrin of some bloggers and the delight of others.

Of course, the more that old media tries to coopt the blogosphere, the more it will itself be transformed. The result, I am afraid, will not be an unalloyed victory for decentralization or democracy, nor will it represent the end of powerful shapers of public opinion who occasionally abuse their power. Rather, it will instead produce a different distribution of power and a different set of dangers and responsibilities.

Just as political parties learned how to manipulate mainstream media in order to structure public debate and deliver their preferred messages, they are learning how to coopt, manipulate (and in some cases become part of) the blogosphere in order to shape public opinion. Increasingly, opinion makers (both in political parties and in the business world) have a multi-pronged strategy that attempts to influence both old and new media. Although the blogosphere regards itself as far too large and too diffuse to be manipulated by powerful political and financial interests, this is surely not so, and the degree of this influence will become even more obvious as time goes on. Nevertheless, the decentralization of the blogosphere and its characteristic architecture (of log normal or powerlaw distributions) allows a degree of countervailing power, which, I continue to hope, will not be extinguished. The revolution is real.

Posted 11:16 AM by JB [link] (28) comments

The Horizontal Sweeping Clause

JB

A question recently asked on Conlawprof-- What gives the federal government power to create the Department of Education?-- offers me the opportunity to discuss a little known aspect of the U.S. Constitution.

To explain why Congress can create the Department of Education, you must first distinguish two questions: (1) What gives Congress the power to create any departments in the executive branch at all; and (2) What gives Congress the power to create the sort of laws that will be implemented by that department. The answer to (1) is the sweeping clause in its horizontal aspect, which gives Congress the power "[t]o make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, *or in any department or officer thereof.*" (emphasis added). We usually think about this clause in its vertical aspect, that is, how it divides power between the states and the federal government, but it is equally important in its horizontal aspect, in giving Congress power to create new executive departments. The "horizontal sweeping clause" is the source of Congress's power to create various administrative elements of the federal government above and beyond its powers to provide for an Army and Navy, and to create lower federal courts.

We know that the Constitution contemplates creation of executive departments from the opinions clause of Article II, section 2, which gives the President the power to "require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices." Because the number of executive departments is not specified in the Constitution itself, Congress is given the power to create new ones (or abolish old ones).

The test for whether an exercise of the horizontal sweeping clause is constitutional is the test of McCulloch v. Maryland. This brings us to question (2). If the Constitution gives the federal government no powers at all in the field of education, then it would not be appropriate under the horizontal sweeping clause to create a department of education. However, because the Constitution gives Congress powers to regulate education under the taxing and spending clause (as well as the commerce clause to some extent) it may create an Executive department which implements laws which it passes dealing with education.

The horizontal sweeping clause is important for another reason: It helps us understand why Alexander Hamilton was right that the words "necessary and proper" do not mean "absolutely necessary" or "required" but rather "convenient," "helpful," or "appropriate," essentially the doctrine created in McCulloch v. Maryland. We ordinarily think of the Necessary and Proper Clause in terms of debates about federal power vis a vis the states, but the same words govern Congress's powers to set up the Executive and Judicial branches and to create new departments. The test for what Congress may do in setting up these departments cannot be whether doing so is necessary in the sense of "absolutely necessary" or "required." Rather, Congress must be given broad discretion in what departments it creates and now many, and how it divides up responsibilities between the various departments.

Since the words "necessary and proper" apply both to the clause's horizontal and vertical aspects, presumptively they have the same relatively broad meaning in both of these aspects. However, when the clause is invoked in its vertical aspect, it must also be read in conjunction with principles of federalism (which are articulated in the Tenth Amendment); when it is invoked in its horizontal aspect, it must be read in conjunction with principles of separation of powers.

Posted 3:52 PM by JB [link] (26) comments

DOJ Memo Defends Cheney Shooting

JB

Frankly, I don't understand all the fuss about Vice President Cheney's shooting of Harry Whittington. This unsigned Department of Justice Memorandum, which was slipped under my door this morning, explains it all:

* * * * *

Under the unitary executive theory of Article II, the President of the United States, as Commander-in-Chief, has inherent authority to shoot anyone he likes, and he may surely delegate that authority to his second in command, the Vice President of the United States. Indeed, to the extent that federal law or state tort law is to the contrary, we must read all such laws in harmony with the inherent powers of the President as head of the unitary executive in order to avoid any potential constitutional conflict. As the President himself noted in his recent signing statement to the McCain Amendment, laws that purport to limit the President's authority to use force in time of war must be construed "in a manner consistent with the constitutional authority of the president to supervise the unitary executive branch and as commander in chief."

The Executive's ability to identify enemy combatants and apprehend or, if necessary, shoot them on the field of battle is fully recognized under the laws of war. There is no doubt that it is fully within the President's powers under the laws of war to identify enemy combatants and apprehend, or if necessary, shoot them in order to prevent them from returning to the battlefield where they may do harm to the interests of the United States. In this case, it is undisputed that Harry Whittington (if that is his *real* name) was carrying arms in close proximity to the Vice President of the United States, and, moreover, in the very same state as the President's Crawford, Texas, residence.

It was therefore completely within the Vice-President's discretion to determine that the said Whittington was an enemy combatant who posed a threat, whether real, potential, imagined or fictitious, to the national security of the United States. Media accounts do not reveal what Harry Whittington's name was before he changed it; it is entirely possible, however, that his real name is Ari Al-Whittington and that he is an Al Qaeda operative, or is associated with groups who are associated with Al Qaeda, or is associated with groups who are associated with groups who are associated with Al Qaeda. And so on.

The objection that Al-Whittington was found on American soil is completely without merit. We are dealing with questions of war, not the criminal or civil process. What so-called "civil libertarians" still don't understand is that 9-11 changed everything. Thousands of people died in the World Trade Center *on American soil.* Discovering Al Qaeda operatives on American soil, or those that executive suspects, whether reasonably or unreasonably, to be Al Qaeda operatives, does not bestow upon such "persons" the "right" to call upon the criminal justice system, much less the civil tort system. We note, moreover, that the President's constitutional obligation in Article II, section 3, to "take care that the laws be faithfully executed" fully supports these conclusions. If the President is constitutionally authorized to execute "laws," a fortiori he is clearly authorized to execute "persons" by shooting them at his discretion.

Nor is the fact that Al-Whittington is a 78 year old businessman who has made substantial contributions to the Republican Party a reason to doubt the Vice-President's plenary determination that Al-Whittington may have links to Al Qaeda, or links to links to links to Al Qaeda. After all, if Al Qaeda wished to infiltrate the Executive branch it would be entirely logical to plant operatives posing as Republican businessmen who gave money to Republican causes because everyone knows that in this Administration the best way to gain access to Administration officials is to buy your way in. Indeed, precisely because money buys access in this Administration, the more money a businessman gives, the more justified the suspicion that the businessman is in fact in league with Al Qaeda, groups associated with Al Qaeda, groups associated with groups associated with Al Qaeda, and so on. The Vice-President's determination, whether reasonable, unreasonable, or completely under the influence of drugs, is therefore plenary and unreviewable, as is made clear by the text of the Constitution, which fails to say anything to the contrary.

Finally, even if one doubts the inherent authority of the unitary executive to identify and shoot persons like Al-Whittington, the September 18th, 2001 Authorization for the Use of Military Force (hereinafter "AUMF") clearly gives the President authority "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." This authorization clearly includes persons like Al-Whittington, since the letters in the authorization can be rearranged to spell "Al-Whittington," not to mention "Al-Gore." (But we digress). Such Congressional authorization clearly trumps any federal or state law to the contrary, and all state or federal laws which may be passed in the future. In particular, the AUMF clearly obviates the need for Vice President Cheney to have purchased a hunting license from the State of Texas.

In sum, because of the President's inherent authority to supervise and direct the Unitary Executive Branch as Commander-in-Chief under Article II of the Constitution, Vice President Cheney was clearly authorized to shoot Ari Al-Whittington, enemy of the people, under the laws of war. Any suggestions to the contrary show ignorance of the original understanding of the United States Constitution, serve to give our enemies in the Global War on Terror aid and comfort, and in and of themselves constitute grounds for detention as an enemy combatant. We're serious. Don't f*ck with us.

Department of Justice
John Yoo Building
Washington, D.C.

Posted 2:33 PM by JB [link] (40) comments

Q: When is a Bill Signed by the President Not a Law?

Marty Lederman

A. When it has not been passed by both the House and the Senate. U.S. Const. Art. I, sec. 7, cl. 2.

Civics 101 lesson:

On Wednesday, the President signed S. 1932, the Deficit Reduction Act of 2005. It is, by all accounts, an extremely significant, $39 billion piece of legislation, which sharply divided the legislature. The bill passed the Senate back in December only on the tie-breaking vote of the Vice President. It then went to the House, which purported to agree to the Senate amendment by a vote of 216 to 214 on February 1st. In other words, it doesn't get much closer than that.

But there's a catch -- namely, that the House apparently did not vote for the bill that had passed the Senate.

Section 5101(b)(1)(B) of the bill would limit Medicare payment for rental of oxygen equipment to a period of 36 months, after which the supplier of the equipment must transfer title to the recipient. This had been a controversial provision. Under pre-existing law, Medicare paid for oxygen supply, tanks and maintenance for as long as an eligible patient uses them; and the average usage period is 30 months. The House-Senate Conference had capped payments at 18 months, which caused Sen. George Voinovich, R-Ohio, "normally an immovable budget hawk," to threaten to derail the entire $40 billion deficit-cutting bill. Hence, the 36-month solution in the Senate bill.

For rental of (almost) all other "durable medical equipment," however (e.g., wheelchairs), section 5101(a)(1) of the Senate bill capped payment at 13 months.

Here's the rub: When the Senate sent S.1932 over to the House, the "36 months" language for oxygen tanks in section 5101(b) was included, but that same language was also inserted into section 5101(a), so that the bill provides for reimbursement for other durable medical equipment for the same 36 months as is available for oxygen tanks. (This blurb in yesterday's Washington Post tells the story, but mistakenly refers to the discrepancy as appearing in the oxygen-tank provision, rather than in the catch-all provision.)

Oops.

The Post story reports that "when the mistake was discovered, a . . . clerk scribbled out '36 months' and wrote in '13 months.'" But that's not quite right. According to a Congressional Quarterly story, the mistake apparently was discovered in mid-January, but was not then corrected, because "no agreement could be reached between the House and Senate about how to resolve the difference from the Senate version other than passing a corrective measure after enacting the reconciliation bill." So the different bill was considered by the House, where it was approved by just two votes.

After the House passed the bill, the Senate clerk "corrected" the error and, according to CQ, "[i]t was then certified by House Speaker J. Dennis Hastert, R-Ill., and Sen. Ted Stevens, R-Alaska, acting in his capacity as president pro-tempore of the Senate, as the correct bill and sent to the president."

The enrolled version that was transmitted to the President tracks the Senate version.

But the House never passed the actual Senate-passed version.

Article I provides that, in order to become a law, a "Bill . . . shall have passed the House of Representatives and the Senate." (For those of you needing a refresher course, listen here.) Has S.1932, which the President signed on Wednesday, passed the House of Representatives?

If not, what comes of it?

[UPDATE: Tom Johnson, in the Comments, cites Field v. Clark for the proposition that "the version of the bill signed by the leaders of both houses and presented to the president is the authoritative text of the act, and the courts have no authority to look to committee reports or other parol evidence to impeach it." "Therefore," Tom writes, "if the version signed by the President included the 13 month language, then that would appear to be the law."

Close, but not quite. Tom is probably correct in suggesting that the courts will enforce the bill as signed by the President, at least if and when the bill is deposited in the public Archives. That's the holding of Field v. Clark, 143 U.S. 649 (1892), in which the first Justice Harlan held for the Court that, once a bill is deposited in the public Archives, a court should not look behind the President's signature, and the attestation of the Speaker and President Pro Tem, to question whether the bill was in fact passed by both houses. (The signed bill in Field v. Clark apparently omitted a section that had been in the version approved by both houses of Congress.)

But that does not determine whether or not the Deficit Reduction Act is a law. The Field rule is an evidentiary rule, motivated by the "respect due to a coordinate branch of the government." The Court explained that for it to look behind the signatures would suggest the possibility of "a deliberate conspiracy" of the presiding congressional officers to send to the President a bill that had not, in fact, been passed by both houses -- something the Court was understandably loathe to do. Id. at 672-673.

Which goes to show, at most, that Hastert and Stevens, et al., might get away with what is, in fact, a "conspiracy" to violate the Constitution. That is to say, Dennis Hastert has violated his constitutional oath by attesting to the accuracy of the bill, knowing that the House version was different (and having intentionally avoided fixing the discrepancy when it came to his attention before the House vote). And Stevens and the President are coconspirators, assuming they, too, knew about the problem before they attested to and signed the bill, respectively.

What's the authority for my conclusion that the bill is not a law? None other than Field v. Clark itself, in which the Court agreed that "it cannot be doubted" that a bill signed by the President "does not become a law of the United States if it ha[s] not in fact been passed by Congress. . . . There is no authority in the presiding officers of the House of Representatives and the Senate to attest by their signatures, nor in the President to approve, nor in the Secretary of State to receive and cause to be published, as a legislative act, any bill not passed by Congress." Id. at 669.

Just because something won't be remedied by the judiciary doesn't mean it's constitutional -- and doesn't mean the President and officers of the Congress can lawfully ignore their constitutional obligations.]
Posted 10:33 AM by Marty Lederman [link] (34) comments

Congressional Oversight, Party Loyalty, and Separation of Powers

JB

There are at least two different explanations for resistance among Republicans to the President's NSA program. The first is that there are some public spirited public officials who genuinely believe that the program violates the law and/or the Constitution, and are worried that the Administration is dangerously aggrandizing power, and are willing to risk the disfavor of the Administration in saying so. The second is that Republican members of Congress increasingly understand that their political fortunes are not tied to that of the Bush administration and that what is good for their interests in reelection may differ from the Administration's. This President, after all, will never run for reelection while Congressmen and Senators must continually do so.

Our constitutional system is premised on the idea that the first explanation-- of simple public spiritedness and courage-- will not always be sufficient and that the second explanation-- of political self-interest-- will often be necessary to counteract overreaching by another branch of government.

The problem, however, is that in contemporary politics party loyalty has often proved much stronger than institutional rivalry between Congress and the President. After the Republican Party succeeded in capturing both Houses of Congress and the Presidency (not to mention a majority of the Supreme Court), the basic strategy was for the political branches to work together. Karl Rove used 9-11 and the War on Terror to create a new set of themes that Republicans could unite around and run on to the disadvantage of Democrats.

To a significant extent, the Administration is still using that same playbook-- repeatedly sending the message that Republicans are serious about protecting Americans, while Democrats are not. Using these themes, the President ran on behalf of Republican candidates in 2002 with considerable success, and he managed to increase Congressional margins in 2004.

As a result, Republicans in Congress have, until recently, been unwilling to perform the function of Congress in a system of separated powers-- to oversee, expose, or push back against Administration overreaching, bad judgment or incompetence. Because this natural check and balance of the political system has been overcome by party politics, the result has been repeated instances of all three-- overreaching, bad judgment and incompetence.

Many have worried that the successful political strategies we have seen in this Administration mean that the logic of the constitutional system is breaking down and that we can no longer depend on separation of powers to check the other branches. That is why the recent developments are so important. They suggest that although a movement party like the Republicans can work together for a while, at some point repeated election cycles drive a wedge between the interests of Congress and the President controlled by the same party, particularly when the Administration is a lame duck Administration.

Although I have not been a fan of the Twenty Second Amendment, which limits Presidential terms to two, it does have the unintended effect of helping to create this sort of wedge. Even if a movement party controlling both Congress and the Presidency can march in a relatively secure lockstep during a President's first term, differences will almost certainly arise in the second term. And of course, if the public becomes sufficiently aroused and unhappy with what the movement party has done, it may break up the constitutional trifecta and hand one House or the Presidency to the other party.

The question is whether this mechanism is enough to do all the work that the framers of the 1787 Constitution originally hoped it would. (We must remember that the framers didn't even believe that there would be poiltical parties, so the fact that the system of separated powers has done much of the work it was intended to do is something of a miracle). Although the signs are hopeful, the jury, alas, is still out on this question. Republicans and Democrats alike have worked hard to ensure a large number of safe seats in the House; moreover, the contemporary system of campaign finance favors incumbents and allows Congressional leaders to keep Congressmen and Senators in marginal constituencies in line. Hence the Rovian model of a relatively disciplined party in which the President and Congressional Republicans work in lockstep may still have considerable staying power. And it is that Rovian model that has undermined the system of checks and balances that helps keep Presidents honest. Even though some Republicans are now objecting to this President's repeated acts of overreaching and incompetence, I am not yet convinced that the Congress as a whole will be able to perform its oversight function in a sustained fashion. Only time will tell.

Posted 8:30 AM by JB [link] (20) comments

Shorter Attorney General Gonzales

JB

What we did was legal, or, in our opinion, could have been legal. Since there are arguments on both sides, we will rely on our opinion. However, we won't let a court decide the question, because then we wouldn't be able to rely on our own opinion.

We won't answer hypothetical questions about what we can do legally or constitutionally. We also won't tell you what we've actually done or plan to do; hence every question you ask will about legality be in effect a hypothetical, and therefore we can refuse to answer it.

Posted 8:54 AM by JB [link] (41) comments